Sheffield & Almond
[2024] FedCFamC1F 785
•22 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sheffield & Almond [2024] FedCFamC1F 785
File number(s): SYC 855 of 2016 Judgment of: BOYLE J Date of judgment: 22 November 2024 Catchwords: FAMILY LAW – CHILDREN – Where the proceedings concern one child aged 11 years - Where final orders were made in 2020 which provided for the child to live with the father and spend time with the mother – Where the mother’s time with the child was suspended in circumstances where she removed the child from the care of the father on two occasions – Where the mother was charged and received a custodial sentence with respect to her retention of the child – Where the mother has spent limited time with the child since 2020 – Where the issue in dispute is what time, if any, the child should spend with the mother – Consideration of the child’s views.
FAMILY LAW – HARMFUL PROCEEDINGS - Where the parties have been involved in litigation since 2016 – Where the father and Independent Children’s Lawyer seek an order be made restraining the mother from instituting further proceeding without leave – Where the court finds that the child would suffer psychological harm if further proceedings are instituted by the mother – Where an order is made pursuant to s 102QAC(1) of the Family Law Act 1975 (Cth).
Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 69ZT, 102NA, 102QAC Cases cited: Carey & Prescott (No 2) [2024] FedCFamC1F 512
Isles & Nelissen (2022) FLC 94-042
M v M (1988) 166 CLR 69; [1988] HCA 68
Division: Division 1 First Instance Number of paragraphs: 118 Date of hearing: 5-7 November 2024 Place: Sydney Counsel for the Applicant: Mr Scarlett Solicitor for the Applicant: White Hat Lawyers Counsel for the Respondent: Mr Ang Solicitor for the Respondent: John Stonham & Co Counsel for the Independent Children's Lawyer: Mr Blackah Solicitor for the Independent Children's Lawyer: Marsdens Law Group ORDERS
SYC 855 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS ALMOND
Applicant
AND: MR SHEFFIELD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BOYLE J
DATE OF ORDER:
22 NOVEMBER 2024
THE COURT ORDERS THAT:
1.All previous Orders are discharged.
2.The child X born in 2013 (“X”) shall live with the father.
3.The father is solely responsible for making decisions regarding X’s long term care, welfare and development.
4.The mother is permitted to send cards, letters, presents and emails to X, and the father shall do all acts and things to ensure such correspondence is received by X and X has the opportunity to respond by post or email should she so wish.
5.In the event X expresses a desire to communicate with the mother, spend time with the mother, send cards and/or gifts to the mother or engage in family therapy, the father shall do all acts and things to facilitate X engaging in this time, communication or therapy.
6.Pursuant to s 102QAC(1) of the Family Law Act 1975 (Cth) (“the Act”) the Respondent mother Ms Almond is prohibited from instituting proceedings under the Act against the Applicant Mr Sheffield (“Applicant”) without the leave of the Court under s 102QAG of the Act.
7.Pursuant to s 102QAC(7) of the Act, in the event the Respondent mother Ms Almond makes an application under s 102QAE of the Act for leave to institute proceedings against the Applicant, a Registrar of this court is to notify the Applicant if the application is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BOYLE J:
These are parenting proceedings in relation to the child of the parties, X aged 11 years.
X has lived with her father since December 2020. Between December 2020 and May 2024, X did not spend any time with her mother. X has spent limited time with the mother in a supervised setting on three occasions since May 2024. Time ceased in August 2024 when the contact facility withdrew their services.
There is no dispute that X should continue to live with her father, and that he should have decision making authority for major long term issues. The major issue is whether X should spend time or communicate with the mother.
BACKGROUND
The parties commenced cohabitation in 2006 and married in 2006. X was born in 2013.
The parties separated on a final basis on 29 November 2014. X lived with the mother following separation. X spent time with the father as agreed between the parties.
On the day of separation the father was served with an interim Apprehended Domestic Violence Order (“ADVO”) for the protection of the mother against the father. In early 2015, the mother withdrew the interim ADVO.
In 2015, the mother re-married.
In 2016, the father re-married. He and his wife have two children aged seven and five.
In early 2016, the mother relocated to Town B with X. She did not inform the father of her intention to do so. On 29 February 2016, the father commenced proceedings. Interim orders were made for X to live with the mother and spend time with the father two nights per fortnight.
On 13 October 2016, orders were made requiring the mother to return X to live in the Sydney metropolitan area. The mother returned with X to Sydney in mid-2017.
In early 2017 the father was served with an interim ADVO. In mid-2017 the ADVO was withdrawn by NSW Police.
In early 2017 the father was contacted by the Town GG Child Abuse Squad about allegations that he had sexually abused X. No further action was taken about the allegations. The mother admitted during the hearing of parenting matters in this court that she falsified the allegations.
On 10 May 2017, interim orders were made by consent for X to live with the parties in a week about arrangement.
On 2 November 2018, interim orders were made by consent following a 10 day contested final hearing. The orders provided for the father to have sole parental responsibility for X, that she live with the father, and spend no time with the mother for a period of three months. Thereafter, X spend time with her mother each Saturday provided she engaged in personal therapy.
On 12 July 2019, interim orders were made by consent for X to spend time with the mother from Friday until Saturday each alternate week.
On 20 February 2020, final parenting orders were made following a five day contested hearing. The orders provided for the father to have sole parental responsibility for X, that X live with him and spend increasing time with the mother. The end point of time arrangements was six nights each fortnight.
On 20 October 2020, the mother failed to return X to the father’s care in accordance with the orders. A recovery order was made on 5 November 2020. In late November 2020, X was located by the police and returned to the father’s care.
In December 2020, the mother removed X from her school in company with five people. The mother relied on a document that purported to be a court order for the mother to take X into her care. That document was false. On the following day, X was returned to the father’s care by the police.
Following these incidents an ADVO was taken out by the police against the mother for the protection of X. The mother was arrested and charged with offences related to removing X from the father’s care.
In December 2020, the mother was incarcerated. She pleaded guilty to charges related to her retention of X and received a custodial sentence. On 14 December 2020, orders were made suspending the mother’s time with X.
In late 2021, the mother was released on parole. Her sentence expired in late 2022.
On 24 April 2022, the mother commenced these proceedings seeking to vary the final parenting orders and spend time with X.
The matter was listed for final hearing to commence 4 March 2024. The matter was unable to proceed for reasons outside the parties’ and court’s control. The parties entered interim consent orders for X to spend time with the mother supervised by HH Family Services. Time between X and the mother occurred in May 2024, July 2024 and August 2024. In September 2024, HH Family Services sent a letter to the parties that the service was unable to continue supervised contact. The letter referred to the service agreement entered into by the parties, specifically at paragraph 39:
…if after several visits a child appears unwilling or very distressed CCS staff will respect the child’s feelings and the visit may not occur, or visits may not commence. If such behaviour continues, then contact may be terminated.
X has not spent time nor communicated with her mother since the last visit in August 2024.
PROPOSALS OF THE PARTIES
The mother relied on a minute of orders tendered prior to final submissions. She sought no orders about parental responsibility nor decision making. No submission was made on the mother’s behalf in opposition to the orders sought by the Independent Children’s Lawyer and father with respect to decision making.
The mother seeks orders for a gradual increase of her time with X. The mother proposes that time occur on a supervised basis for a year on two occasions each month. Then time occur unsupervised on two occasions each month, between 1.00 pm and 4.00 pm. After a further year, time occur between 10.00 am and 4.00 pm at the same frequency. After a further year, time occur on two weekends each month, on Saturday and Sunday from 10.00 am until 5.00 pm. After a further year, time may include overnight in accordance with X’s wishes. The mother proposes additional time on special occasions. The mother proposes that she be able to communicate electronically with X on a weekly basis.
The mother proposes that the time arrangements be supported by X and the mother engaging in family therapy, which shall commence three months prior to the re-introduction of time.
The Independent Children’s Lawyer seeks orders that X should continue to live with her father, and that he have sole decision making authority for major long term issues. The mother be permitted to send to X cards, letters, presents and emails. The Independent Children’s Lawyer seeks an order that in the event that X expresses a desire to communicate or spend time with the mother, or engage in family therapy, the father do all acts and things necessary to facilitate this. The Independent Children’s Lawyer further seeks an order pursuant to s 102QAC(1) of the Family Law Act 1975 (Cth) (“the Act”) that the mother be restrained from initiating further proceedings without leave of the court.
The father adopted the Independent Children’s Lawyer’s proposal.
DOCUMENTS RELIED UPON
The mother relied upon the following documents:
(a)Amended Initiating Application filed on 19 May 2023.
(b)Affidavit of the mother filed 30 October 2024.
(c)Affidavit of the mother filed 6 February 2024.
(d)Affidavit of Dr JJ filed 4 November 2024.
(e)Affidavit of Dr KK filed on 6 February 2024.
The father relied upon the following documents:
(a)Affidavit of the father filed on 28 February 2024.
(b)Affidavit of the father filed 22 October 2024.
The Independent Children’s Lawyer, and the parties, relied upon the family report prepared by Ms LL dated 15 March 2023.
The parties all tendered documents, which I have had regard to.
The parties, Dr KK and Ms LL were all cross examined. Dr JJ was not required for cross examination.
Dr KK’s Report
Dr KK met with the mother in early 2021 and late 2021 via audio-visual link when she was in custody. He provided a report dated 3 November 2021 to the solicitors acting for the mother in the criminal proceedings. Dr KK noted the correct date of the report is 23 November 2021. It was tendered by the Independent Children’s Lawyer in these proceedings.
Dr KK prepared a report at the request of the then solicitor for the mother on 19 September 2023, which is annexed to an affidavit filed 6 February 2024. Annexed to the affidavit is a letter of instructions dated 5 September 2023, and a curriculum vitae of Dr KK. Consent Orders of 28 April 2023 gave the solicitors for the mother leave to provide various documents to Dr KK for the purpose of him undertaking an updated report for the mother. The order makes no reference to the terms of the report, nor the basis for the report.
Objection was taken by the Independent Children’s Lawyer to parts of the second report. Counsel for the father did not seek to be heard on the issue. Broadly, the basis of the objection was that Dr KK had gone beyond the scope of reporting on matters relating to the mother’s mental or psychological health. He included in the report comment and conclusions on matters pertaining to the father, the child, and family members. This should not be permitted as he had not interviewed, observed or assessed those people. Pursuant to s 69ZT of the Act I accept that the rules of evidence should apply to Dr KK’s evidence because of the comments and conclusions about the child, and other family members, that he reached without assessments of those people.
Counsel for the mother made a number of concessions with respect to the report: paragraphs 70, 90 and 91 were not read. Portions of paragraphs 65, 66, 68 and 69 were not read.
I determined the issue and indicated that reasons would be provided in this judgment.
The Independent Children’s Lawyer’s objected to paragraphs 63, 64, 65, 66, 68, 69, 71, 72, 73, 74, 75, 88 of the report.
Paragraphs 63, 72, 74 are headings. The headings came from the letter of instructions from the mother’s solicitors, about which no issue was taken. I do not regard the headings as forming part of the opinion of Dr KK, and reject the objection.
With respect to the balance of the objections I upheld the objection to the last sentence of paragraph 64. Dr KK refers at paragraph 64 to risk arising to X in two broad categories: firstly action by the mother that may cause X harm; secondly tension between the parents causing X to choose between her parents, and experiencing psychological harm. The first of these is a matter that Dr KK has considered by interviewing the mother, and reviewing the material he was provided. The second is speculative as it moved beyond a consideration of the mother to limiting to a second limb of risk to X of psychological harm from tension between her parents. He has not assessed either X or her father. Limiting the potential risk to X in the manner he does is reliant on the mother’s perspective. It moves beyond matters on which he can comment within his expertise. I excluded the last sentence of paragraph 64 for that reason.
In paragraph 65 the first sentence from “[X’s] age” to “mature for her age” was not read by the mother. The rest of the paragraph deals with Dr KK’s views about the mother’s experience of her mistakes, and her learning from that. I accept he can give evidence about those matters.
Paragraphs 66, 68, 69 and 71 are rejected. Dr KK moves beyond considering the mother’s views and experiences to speculating about how a relationship may develop with X, how X may experience that, weighing risks for X, and pressure which she may experience causing harm to her. These matters require Dr KK to speculate about X, whom he has not assessed. Otherwise the report was in evidence, subject to the usual issue of weight.
THE LAW
Part VII of the Act deals with the making of parenting orders. Section 60CA of the Act provides that the court must regard the best interests of the child as the paramount consideration in making a parenting order. Section 60CC(2), (2A) and (3) of the Act set out a list of matters to be considered in determining what is in a child’s best interest. It is not an exhaustive list.[1]
[1] Family Law Act1975 (Cth) (“Family Law Act”) s 60CC(2)(f).
In considering what orders would promote the safety of the child, the authorities of M v M (1988) 166 CLR 69; [1988] HCA 68, and Isles & Nelissen (2022) FLC 94-042 are relevant to the assessment of risk of harm to the child. The analysis requires consideration of past conduct of the parties to assess whether there is a risk to the child in the care of either of their parents, and the magnitude of that risk. The assessment of risk is an “evidence based conclusion”.[2] The court must then consider whether that risk is capable of being mitigated by imposing restraints or conditions.
[2] Isles & Nelissen (2022) FLC 94-042.
ISSUES
The issues in this matter are:
·X’s views about spending time with, and communicating with, the mother.
·What arrangements will promote the safety of X.
·Whether orders for time, communication and family therapy with the mother are in X’s best interests
·Whether it is appropriate to make an order under s 102QAC of the Act.
X’s views about spending time with, and communicating with, the mother
X was nine years old at the time that she met with the Family Report writer. The report writer’s opinion that X “presented as a kind and polite child who appears to have a level of maturity beyond her years” was not challenged.[3]
[3] Family Report of Ms LL dated 15 March 2023 (“Family Report”), paragraph 67.
The report writer records X saying she did not feel safe with her mother.[4] X was able to refer to positive times with her mother prior to her mother hiding her, and the police becoming involved. She expressed that “she missed her mother when her mother was incarcerated, however… she got used to missing her” and “her father reassured her that she was allowed to miss her mother”.[5] At the time of the report interviews, X was open to the idea of supervised time although hesitant about that.
[4] Family Report, paragraph 55.
[5] Family Report, paragraph 56.
X had supervised time with her mother in May 2024, July 2024 and August 2024. On each occasion X signalled to the supervisor that she wanted to leave the room where her mother was, before the end of the visit. On the first occasion she said to the contact worker “I do not want to do this again please”. On the second occasion she could not think of anything positive to say about the visit. X was observed to be nervous and anxious during each visit.[6] The centre suspended visits after the third occasion.
[6] Exhibit M5.
In cross examination the report writer noted X is 11 years, and has more capacity to form views now than when she was assessed at nine years. Supervised time was attempted, and she has been consistent that she did not want time with her mother.
X has seen Mr MM, psychologist, since May 2023. She has attended over 25 sessions. She is being treated with cognitive behavioural therapy.
Mr MM provided a report to the Independent Children’s Lawyer dated 21 October 2024. The report refers to X having frequent thoughts about her experience when she was taken by her mother, which increases her anxiety. The occasions of supervised time were considered by X as stressful, anxiety provoking and scary. Mr MM opined that as X has no healthy attachment to her mother, there is more chance of harm than benefit in the relationship.
Mr MM is of the view that X is not ready for family therapy, and is “explicit about meeting her mother”. It is clear from the material, and accepted by all parties, that X has told Mr MM that she does not want to see her mother. He does not support X spending time with her mother as being in X’s interests. In his view she requires long-term cognitive behavioural therapy to acquire new skills and strategies to better cope with stressful situations and uncomfortable internal thoughts.
Dr P worked with X at the conclusion of the earlier proceedings. Dr P then saw X in December 2020 pursuant to a mental health care plan, and on six occasions thereafter. Two reporting letters of Dr P to the general practitioner, dated 8 December 2020, and 20 May 2022 are in evidence.[7] Additionally Dr P’s notes of an appointment in May 2022 are in evidence.[8] Dr P noted that X misses and wants to see her mother.
[7] Exhibit M3.
[8] Exhibit M4.
X’s view not to see her mother as expressed to the report writer is consistent with Mr MM’s report, and as reported by the Independent Children’s Lawyer. Mr MM has had recent appointments with X, and known her since May 2023.
The report writer saw it as significant that X sees a psychologist. This provides her with a safe space to talk about her emotions, and to ask questions she may have in the future. Counselling assists her develop coping mechanisms.
The report writer was cross examined about the difference in X’s views as expressed to Dr P and Mr MM. She referred to X as being more mature now, and better able to understand relationships. I accept that X’s views will change as she matures, and tries to make sense of her mother’s past conduct. The report writer noted X’s comments to the contact supervisor in the tendered records for the centre, that her mother had made some bad choices but that she could see that she was not a bad person. The report writer observed this reflected a considered view of X. I agree with this observation.
I accept that X is a child of greater maturity than her years, in accordance with the report writer’s evidence. She does not wish to see her mother, nor communicate with her mother. She has expressed this to several people independent of either of her parents. She has done so after recent experience of seeing her mother in a supervised setting, where on each of the three occasions she has requested to finish the time early. She has appeared to the staff at the contact centre to be anxious and shaky when seeing her mother, consistent with her comments to them about feeling anxious.
The father has encouraged and facilitated X’s relationship with her maternal family, and supervised time at the contact centre. I accept his evidence that should X wish to spend time with her mother, or communicate with her mother in the future she will be able to tell him, and he will facilitate that.
What arrangements will promote the safety of X
The mother has failed to comply with court orders with respect to X’s care on a number of occasions.
At the time proceedings were first commenced the mother had relocated with X to Town B, without advising the father. On 13 October 2016, the mother was ordered to return X to Sydney within 42 days. The mother did not return to Sydney until mid-2017.
Agreed facts were prepared for the criminal proceedings against the mother, and tendered in these proceedings. The statement sets out that in October 2020 the mother did not deliver X to school.[9] During cross examination she said she decided to take X in the October 2020 school holidays. I accept that she made a plan to remove X, notwithstanding final orders for X to live with her father. In cross examination she gave evidence that she did so because X said she wanted to stay with her. At various times she has given different reasons for removing X.
[9] Exhibit ICL2.
The father did not know where X was. He tried to contact the mother to get X back. The father brought an urgent application, and on 5 November 2020 location orders, and a recovery order were made.
In October and November 2020 the police attempted to locate X. In November 2020, police officers made contact with the mother by email. They informed the mother that X had been listed as a missing person and asked that she bring her into a police station. A few days later, the mother sent an email to the police officer which said:[10]
[…], Why, not spend your time pursuing low life scum bags like [MR SHEFFIELD] who abuse children? Did you spend all your years to become a detective to pursue mums protecting their children from abuse? Are you so blind to the markers of domestic and family violence that you support women hating [religious people] like [MR SHEFFIELD]?
[10] Exhibit ICL2.
In late November 2020 X and the mother were found in Town NN with Mr OO. Police officers followed them to a cafe. At one point the mother and Mr OO left the table, leaving X sitting alone. Police officers approached X. The mother and Mr OO attempted to intervene by pushing the police officer, and trying to grab X. X wrapped her arms around her mother. As the police officer attempted to remove X, the mother started to scream.
The police officers explained to the mother that they had a recovery order for X. The mother and Mr OO did not accept this, asserting that police officers were in “contempt of a Federal Court Order”.[11]
[11] Exhibit ICL2.
The mother and X were taken to a police station. The mother agreed for X to be returned to the father, and X was transported by Family and Community Services employees. As X was transferred to their care, the mother moved towards the vehicle and yelled out “fuck you”. X was returned to her father later that day.
In early December 2020, X returned to school for the first time since being returned to her father. At around 2.00 pm, the mother attended X’s school. She was accompanied by several other people. She had a document purporting to be a court order permitting recovery of X. The mother maintains that she was unaware the document was fake, and believed a court had issued it. On her version it follows she thought she was entitled to remove X.
The mother went to X’s classroom, grabbed her by the hand and started to walk away. The deputy principal and assistant principal followed them and attempted to intervene. When the deputy principal held his arm out and attempted to stop the mother, she said to him “You have just assaulted my daughter and we have it on camera. You are going to be done for this”. The deputy principal continuously told the mother that there was a court order that X was not to leave with her, and that they needed to come inside the school so that they could see their “new court order”. The mother refused. The mother left with X and the police were called by the school.[12]
[12] Exhibit ICL2.
On the following day, the mother and X were located by the police in City PP. X was recovered by the police and returned to her father later that evening.
The mother says that in 2020 she was influenced by a sovereign citizens group, particularly Mr OO. She blames the group for the abduction of X from school. She asserts Mr O produced the document purporting to be an order. He told her it was real, and she believed him.
The mother agreed she made no application to a court, signed no documents, and did not attend a court to obtain a recovery order. The mother has experience of litigation in this court. The judgment of Justice Henderson, which is before me, sets out a detailed chronology from paragraph 13, including a history of the litigation. She has participated in parenting proceedings since the father filed an application on 29 February 2016. There have been a number of interim proceedings, including an application for a recovery order. After 10 days of hearing, interim consent orders were made on 2 November 2018. A five day hearing was conducted in December 2019. A judgment and orders were made on 20 February 2020. A recovery order was executed by police shortly prior to the mother taking X from school.
Looking at the mother’s conduct, it is not consistent with the conduct of a person who believed she was entitled to take a child into her care. The mother attended during the school day, rather than the end. She took X despite school staff trying to prevent her. She was accompanied by several other people. She did not provide the school with a copy of the ‘order’, which she said permitted her to remove X. She did not wait for the police to attend. She went with X to City PP, rather than take her home. At no stage did she advise X’s father where X was, nor what was happening.
The mother told Dr KK she took responsibility for her behaviour, but also feels she was preyed on to suit other’s agendas. Dr KK noted in his report that the mother struggled to fully appreciate the effect she has had on X by removing her from family, friends and school, and attempting to create a false narrative for X about her father.[13]
[13] Report of Dr KK dated 19 September 2023 (“Dr KK’s Report”), paragraph 82.
For all the reasons sets out above I do not accept that the mother believed the fake document was an order of a court that entitled her to remove X from school, and her father’s care. I accept that the mother has not acknowledged the extent of her role in the removal of X, and the harm it caused to X.
Dr KK analysed whether the mother may be a flight risk primarily in terms of an overseas abduction. The two previous abductions are within Australia. I accept that analysis that does not deal with the mother’s actual conduct is not a helpful predictor of future conduct. Counsel for the mother relied on Dr KK’s view that the mother has paid a high price for her conduct in the later part of 2020, in terms of her incarceration, what happened during that period of incarceration, and the health outcomes for her.
The mother has a long history of seeking to achieve her desired outcomes without consideration of the impact on X, or anyone else. The first retention led to X missing several weeks of school, and police were involved in removing her from her mother. Her mother argued with and resisted the police. This was a terrible situation, and X was put in the middle of it by her mother. Her recovery by police on the second occasion subjected X to being put in the same situation.
On the second occasion the mother removed X from school, accompanied by people not known to X. The mother by her actions made X feel unsafe in the school environment, which is a place where X is entitled to feel safe.
On her return the father described X being anxious, not wanting to separate, and being afraid to go to school. The implications for X’s sense of security and psychological wellbeing are enormous. This has the potential to cause difficulties in her participation in her education, and peer relationships. The mother’s conduct on both occasions was the antithesis of a parent providing for a child’s developmental, psychological and emotional needs.
The examples of the mother’s conduct referred to support the concern that the mother does not respect orders of the court. There remains a risk that she may again try to keep X from her father. I accept that the mother would be unlikely to be successful given X’s age, maturity, and ability to express her views. However, an attempt to do so would have a serious impact on X.She is an anxious child. There would be a significant psychological toll on X were her mother to attempt to do so again.
I have referred to the risk of psychological harm for X in orders that require her to engage with her mother against her clearly expressed wish not to do so. This is the case whether it as an order for family therapy, or time, or communication. The report writer gave evidence of a negative impact on X’s mental health if that she feels her views are not listened to.
In the report dated 19 September 2023, Dr KK concluded that the mother likely had post‑traumatic stress disorder (“PSTD”) at the time of his first assessment, and extending into 2022. He found she:
…remains anxious, eager to convince others that she has gained insight (which I think is a legitimate acquisition) and has moved on from the distorted thinking that marked her relationship and behaviour in the years prior to her incarceration.[14]
[14] Report of Dr KK, paragraph 58.
The mother told Dr KK in 2023 she had a good relationship with her family, including a reasonably supportive relationship with her siblings. She acknowledged that was not the case previously.
Justice Henderson found the mother made false allegations, which she knew to be false, that X was subjected to sexual abuse and physical abuse by her father. The mother admitted before Justice Henderson that she coached X to make false complaints about the father and his wife, and recorded X making those allegations. While X is now older and unlikely to be pressured into participating in recordings, or making statements critical of her father at her mother’s behest, that does not mean her mother would not attempt to do so. Were the mother to attempt to pressure X about her relationship with her father, that would be adverse to her interests and not promote her safety.
The maternal grandfather’s unchallenged evidence is that the mother and her siblings are on minimal to no speaking terms. He asserts that X likes spending time with her maternal aunts and cousins. The mother does not have regular communication with her siblings, on the maternal grandfather’s evidence. He refers to wanting to assist her in re-developing her relationship with the maternal family. The mother was not honest with Dr KK that she has reasonably supportive relationships with her siblings.
The mother told the report writer that in her view X has been “alienated” from the maternal family. The father’s evidence is he has ensured that X has maintained a connection to her maternal family. X told the report writer that her maternal aunts and uncles are important relationships to her. She enjoys spending time with them, and her cousins.
The father’s wife has arranged a WhatsApp group with members of the maternal family. X is able to communicate and share information, through her step mother, with this group. Separately from that group the father’s wife speaks to two of the mother’s sisters, and the father speaks with one of her brothers. This ensures that members of the extended family are kept appraised of significant matters for X, and X is similarly kept appraised.
X sees several of her aunts, her uncle, and cousins regularly. There have been events at her aunt’s home where all the cousins spend time together. The father generally delivers and collects X from these visits. If he is requested to do so he stays. It was clear from his evidence that he is respectful of X having her own relationship with the maternal family, and he does not intrude on those relationships. I accept his evidence.
The mother was given the opportunity in cross examination to correct information she provided to the report writer, and did not do so. When challenged about her assertion of “alienation” of X from the maternal family, the mother gave evidence that X has not been to “the farm” for two years. I take that as a reference to the maternal grandparent’s home. She asserts that the father has exaggerated X’s time with the maternal family. Those matters were not put to the father. She eventually conceded that she believed at the time of the family report that X was alienated from her family, but can now see that may not be right.
This is an example of the mother’s preparedness to make a statement critical of the father’s parenting of X, without foundation. It is a serious matter to suggest that a parent has engaged in alienation of a child from family to whom she is connected. That the mother was prepared to do so suggests that she does not have an understanding of the child’s needs.
I accept that the father, assisted by his wife, has supported X in her relationships with the maternal family. There is no suggestion that the father has an input into who attends the maternal family gatherings. There is no evidence of any occasion X was invited to an event, and the father did not facilitate her attendance. Without any order, the father has acted in X’s interests to ensure she has a relationship with her maternal family, and through them her maternal family culture. This demonstrates his capacity to provide for X’s psychological and emotional needs.
Whether orders for time, communication and family therapy with the mother are in X’s best interests
The mother seeks that supervised time commence after three months of family therapy, on alternate Saturdays from 1.00 pm until 3.00 pm for 12 months. Time would then move to unsupervised on Saturday each alternate week from 10.00 am until 4.00 pm. After 12 months time would move to include Sundays. After a further 12 months X could extend the time to overnight on Saturdays if she wishes. By this point X will be 14 years old.
The mother seeks an order that X be able to communicate with her weekly. The drafting of the mother’s orders suggests that communication would start immediately.
The report writer suggested in the family report that family therapy may provide an opportunity for X to repair her relationship with her mother in a supported environment. She was concerned whether the mother was “in the right headspace to repair her relationship with [X] in a way that meets [X’s] needs, rather than [Ms Almond’s]”.[15] The report writer balanced potential benefit against the risk for X that it may be de-stabilising and cause anxiety. These are significant risks for X given the mother’s past conduct, detailed above, which has been enormously disruptive for X.
[15] Family Report, paragraph 78,
At the time of the family report X had just commenced counselling with Mr MM. He continues to see X. Mr MM’s report is recent, and refers to X’s increased anxiety and stress when thinking about her mother. Mr MM notes these could have a negative effect on her emotional, behavioural and social outcomes. He regards her as not ready for therapy with her mother. She does not have sufficient emotional regulation skills to deal with the stress.[16]
[16] Mother’s affidavit filed 30 October 2024, Annexure C.
The report writer during cross examination was concerned about the impact on X’s mental health if she feels her views are not listened to. I accept that being required to attend therapy with her mother would make it clear to X that her views have not been supported. X is approaching adolescence. This could cause a ripple effect of disturbance for her, as suggested by the report writer, in various aspects of her life.
The report writer raised that X needs finality. She has remained anxious about time with her mother, and should not feel under pressure about seeing her mother. I am not satisfied that orders sought by the mother would provide finality for X. X would be returned to a situation of supervised time, which has previously been suspended by a contact centre. Were another centre to take the same view, that may lead to further litigation.
The proposed orders progress time to twice each alternate weekend. At the same time the orders provide for weekly facetime or telephone communication. There is scope in the orders for additional communication in accordance with X’s wishes. The proposed orders for communication and time may lead to further litigation. The time and communication are to occur without any input from X. At the last stage of the orders she will be 14 years. She is already regarded as a mature child. The orders do not allow her any autonomy, other than to have additional time or communication as she wishes. Given her currently expressed views I do not accept that the proposed orders will promote her best interests. Being required to comply with a regime may cause psychological harm to X. I do not accept that could be an arrangement that would promote her safety.
The mother has engaged in family violence by seeking to prevent X from making or keeping connection with her father, his wife and her younger siblings. X was exposed to her mother’s aggressive behaviour towards police who were attempting to recover X. The mother’s conduct caused X to be fearful.
Whether it is appropriate to make an order under s 102QAC of the Act
Orders are sought to restrain the mother from bringing further proceedings without leave of the court. I must be satisfied that there are reasonable grounds to believe the father, the child, or both of them, would likely suffer harm if proceedings are brought by the mother in the future. Harm includes psychological harm or oppression; major mental distress; a detrimental effect on the party’s capacity to care for the child; financial harm. This is not an exclusive list.
Section 102QAC(3) of the Act sets out the matters to which the court may have regard including the history of the proceedings between the parties; whether there has been frequent proceedings instituted by the party against whom the order is sought; the cumulative effect, or potential cumulative effect, of harm resulting from all proceedings.
The history of the litigation is set out in these reasons. Proceedings were commenced on 29 February 2016 by the father. On 2 November 2018 after 10 days of hearing interim consent orders were made. On 20 February 2020 final orders were made. Along the way there were various interim hearings, and orders made.
A recovery order was made on the father’s application for X’s return in November 2020 after she was withheld by the mother in October 2020. X was taken and retained by her mother again in December 2020, shortly after her return by intervention of the police. The father did not know where X was on either occasion. The first time X was retained was for several weeks before she was located. The mother was found guilty of criminal charges related to removing X from the father.
In addition, there have been ADVOs applied for on three occasions. The first was withdrawn by the mother, or at her request. The second was withdrawn by the police against the father. The third was taken out by the police against the mother. That order is still in place for the protection of the father and child.
X has been in an ongoing therapeutic relationship with a psychologist, Mr MM, since May 2023. X on the evidence has significant anxiety. Her anxiety and stress increase when thinking about her mother. X has participated in family report interviews for the current proceedings, and in interviews for reports prepared by Ms E dated 1 December 2019, 10 October 2018 and 9 June 2017 referred to in the judgment of Justice Henderson. She has engaged with an Independent Children’s Lawyer. X’s views in any future litigation would be highly relevant. This would likely involve her again speaking with an Independent Children’s Lawyer, and participating in some form of report. I accept there are reasonable grounds to accept that this would cause her psychological harm by increasing her stress and anxiety. X has been at the centre of litigation since she was three years old.
The report writer has raised concerns with respect to the impact on X of anxiety, and the deleterious effect that has on her. The report writer was clear in her evidence that further proceedings would not be in X’s interests. I accept that X would likely suffer psychological harm if proceedings are brought by the mother in the future.
The mother has initiated proceedings once, being these proceedings. She was a respondent in previous proceedings. Her conduct in breach of orders has required the father to make an application for a for recovery order. Interim hearings were conducted in previous proceedings when the mother took X to live in Town B, and did not comply with an order to return to the Sydney metropolitan area for a year.
The father alone provides X with financial support. I accept that litigation has occurred over eight years. The father has been assisted under the s 102NA scheme in this most recent round of litigation. He has had to take time off work unpaid to participate in the hearing, which incurs a financial burden on him. I accept the mother instituting further proceedings without leave of the court would cause him financial harm.
The specific order sought by the father and Independent Children’s Lawyer would require the mother to seek leave to bring further proceedings, and that the father would be advised if the application is dismissed. The order does not preclude the mother from making an application. The court would fulfill the role of ‘gatekeeper’ to future applications, as referred to by Justice Brasch in Carey & Prescott (No 2) [2024] FedCFamC1F 512.The father would not be required to do anything unless the mother were successful in obtaining leave. Future applications would be left for the court to weigh without his input. No orders would be made for an Independent Children’s Lawyer, for example, unless leave was granted.
It is appropriate for these reasons to make the orders sought pursuant to s 102QAC.
Ancillary orders sought by the mother
The mother seeks orders that the parties communicate about parenting matters through the Our Family Wizard application. The father was not cross examined about use of a parenting application. The mother did not make any submissions in support of use of the parenting application. I do not propose making the order.
The mother seeks orders to be kept advised of X’s address, the father’s email and telephone contact number. There is no issue that she can forward to the father letters cards and presents. He is willing to provide documents to X. I accept that he will facilitate communication and there is no need for an order he keep the mother advised.
The mother seeks orders restraining the father from removing the child from Australia without the mother’s consent. There is no evidence of risk that the father will remove X permanently from Australia. The father was not cross examined about that. I do not propose making an order that would restrain overseas travel, and has the potential to require further litigation.
The mother seeks an order restraining the father from questioning the child about time or communication with the mother. There is no evidence that the father engages in questioning the child about her mother in a way that is harmful to her psychological well being, or damaging to a relationship with the mother. The evidence is to the opposite effect. There is no basis to make the injunction sought and it was not argued for in submissions.
The mother seeks an order restraining the father from permitting X to call his wife ‘mum’ or similar. There is no evidence of what X calls her. X has lived with her for four years, and spent significant time with her since 2016. There is ample evidence of a close and loving relationship between X and the father’s wife. It might be assumed whatever she calls her has developed over those years. It is clear from the evidence that there is no confusion for X about who is her mother. I do not propose making orders that may require the father to intervene on what X calls his wife.
The mother seeks an order that the father be restrained from discussing the family law or criminal proceedings with X. On the evidence the father has not sought to influence X against her mother, nor inappropriately engage her in proceedings. There is no evidence to support an order that his parenting of X should be managed in this way by order of a court. I do not propose making the order sought.
CONCLUSION
Proceedings commenced between these parties in 2016. Litigation has been a feature of X’s life since then to date. It is hoped that these reasons and orders will bring the matter to finality, so that X can deal with the challenges of high school and adolescence without the burden of her parents being embroiled in further litigation.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Boyle. Associate:
Dated: 22 November 2024
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